Advisory Opinions - That Nationwide Injunctions Concurrence

Episode Date: April 15, 2022

David and Sarah start with a short talk about Elon Musk and his quest to buy Twitter, then talk about a fascinating 6th Circuit concurrence that's the best two-page explainer of nationwide injunctions that's available anywhere, and they wind up with an extended discussion of library book bans, and how to judge what's best for kids.   Show Notes: -House passes bill to honor Sandra Day O'Connor and Ruth Bader Ginsburg -Arizona, et al. v. Biden, et al. -PEN America: “Banned in the USA: Rising School Book Bans Threaten Free Expression and Students’ First Amendment Rights” Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger, or is it Sarah Isger? because we were just having a conversation before we started about the new Hulu series,

The Dropout, starring Amanda Seyfried as Elizabeth Holmes. And all of a sudden, Sarah launched into her own Elizabeth Holmes impersonation and hasn't stopped. And so I'm just having to rely on the fact that I can see her on Zoom to know that it's actually her, but it's pretty good. It's pretty good. Elizabeth grew up just a little bit away from me and she's only two years younger. And I just think that like, that's how people talk where we're from. And so the rest of the podcast I should do in the voice of our people. Voice of your people.

I've been around that part of Texas enough to know that that is not the voice of your people. Okay. You may have a point. It's actually, it's like, it's painful after a while. You know, it's like you move your, you, you try to drop your voice box a little, like physically drop it. And like, it just starts to kind of chafe there. Yeah, no, I, I can't imagine. And then adapting that voice as your voice from now and forever. That's pretty crazy. That's a commitment to the bit, as they say. Well, women are given, first of all, women who are trying to achieve any position of power are given all sorts of advice, some terrible, some good. You got to sift through

it all. But something that you'll hear over and over again is to drop your voice. She just took it to the physical extreme, as low as you could possibly drop your voice. She just took it to the physical extreme, as low as you could possibly drop your voice. But I was given advice to drop my voice in my 20s and no doubt did slash as you get older as a woman, your voice is going to drop some anyway. But yeah, not this far. It can't drop down here or else you sound congested because the only way to do it is to sort of close off your nasal passages to get your voice box to drop that low and so then you sound like you have a cold that true and you're even getting her voice in flat not just the tone but kind of the accent because it has a weird because i think you have to like put your lips together in order to again

like get that sound going and i think think I'm impersonating Amanda Seyfried impersonating Elizabeth Holmes, but I'm not sure there's another way to do it. It's possible that this is the only way that you can make this sound as a female with this voice. I saw a clip of her, I think it was on Jimmy Kimmel, where she was doing the voice and she said as much as she tried, she couldn't get it as low as Elizabeth. Yeah. Yeah. I can't either. I can get it to Amanda Seyfried low and that's it. Yeah. Yeah. It's unbelievable. Okay. Well, we're not going to talk about that the whole time, not the whole time. And no dating. Yeah. No dating, no dating. So we're going to talk about

Elon Musk, interesting sixth circuit decision, a report on banned library books, and we're going to answer a question that people ask or maybe respond to a declaration that people make about have we changed or that we have changed. So that's going to be an interesting discussion, or of course we've changed. How have we changed and why? But let's start with Elon. So here's the top line, Sarah. And you called it. You called it.

This is not, I just want to sit on the board, buy 10% of Twitter and have a seat at the board. He set his sights higher. percent of Twitter and have a seat at the board, he set his sights higher. So Elon Musk has launched a takeover bid for Twitter, offering to buy it for $54.20 a share just weeks after he became the social media company's largest shareholder. I'm reading from the New York Times report. Mr. Musk said this was a best and final offer, representing a 54% premium over the day before he began investing in the company in late January, according to Securities and Exchange Commission filing, it would value the company at about $43 billion. In the filing, Mr. Musk said, I don't have confidence in management, and he couldn't make the changes he wanted in the public market. And then he says, and this is a little threat attached here.

If the offer is not accepted, Mr. Musk said he would, quote, need to reconsider my position as a shareholder. According to a letter sent to Brett Taylor, Twitter's chair on April 13th. Twitter has extraordinary potential, says Musk. I will unlock it. So just this is going to be relevant to our discussion. So Twitter shares were 11% higher in pre-market trading. As of this moment, I believe Twitter is up about 10% for the day. Of course, that changes by the second letter, literally. No, actually down to 1.9% after being up a little bit higher.

So it's up 1.9% for the day. So let's kind of unpack this from a couple of perspectives. First, from sort of the cultural slash free speech slash should everyone freak out about this angle. And then we'll talk a little bit about the law. And before we talk about the law, I'm going to issue what we like to call here at the Advisory Opinions Podcast, the malpractice alert. Like antitrust law, David and I do not practice law before the Securities and Exchange Commission. We have no experience doing so. But David, on our behalf, has read a law review article. I did read a law review article. So it is, as I said before, it's better than going to BuzzFeed and six reasons why Twitter's

board doesn't have to accept Elon Musk's offer in GIF form. By the way, David, just to go back to our previous conversation, I mentioned the fiduciary duty regarding tweets and how that could all play out about the board approving his tweets. So I did not know at the time, though perhaps it was somewhere in the back of my head, Musk and Tesla in 2018 agreed to pay a $40 million fine million civil fine and for Musk to have his tweets approved by a corporate lawyer after he tweeted about having the money to take Tesla private at $420 per share.

So that $40 million was a civil agreement with the SEC. So anyway, I was like, oh yeah, that already happened. Ha ha. Yeah, that's right. After our podcast, I thought I had this thing buzzing in the back of my head. There's something about that, but- Sounds familiar. It sounds familiar.

And when you thought through it more, Elon Musk, and not that I know him, but he does not seem from a distance, as I have followed his quest for Mars, he does not seem from a distance to be the kind of person who likes to be one voice out of 10 or 12 in a room. From a distance, Elon Musk is an egomaniac. Now, I have multiple thoughts, one of them being, please don't let this distract you from Mars. That's one thought that I have. But another thought is, I have a hard time really caring about this a great deal from

sort of a free speech slash market slash cultural perspective. Because you don't think it'll happen or because you think if it happens, it won't matter. Because I think if it happens, it matters. I just think there's no chance of it happening. Okay. So I think if it happens, it will matter, but not a tremendous amount. I think that there are a couple of factors in play. One, I think immediately would matter in the sense that I think he'd are a couple of factors in play. One, I think immediately would matter in the sense that I think he'd bring back the most salient decision that he'd make would probably be to bring back Donald Trump to Twitter, which part of me was thinking that was going to happen anyway

if Trump announced and decided to run again. I, I, I wasn't, I just had a feeling he was coming back. Now, what kind of impact that would have on our politics, on our culture? I mean, he's been there before. We kind of know what it's like. But the other thing is, I think folks exaggerate Twitter's censorship? So yes. Okay. Yes. Yes. Fine. Yes. But, or as Nate now says, yes, no. Yeah. Yes. No. Uh, so I think that people don't exaggerate Twitter's censorship necessarily in terms of how much content Twitter actually takes down. But the culture of Twitter, I think, would change dramatically if Elon Musk owned it, because I think you would have a number of... Right now, there is a sense, a cultural sense on Twitter that it is predominantly liberal voices overall.

it is predominantly liberal voices overall. And then the loudest voices are the extreme liberal and the extreme conservative. Right. If Elon Musk owns Twitter, that culture changes almost overnight in terms of what Twitter, like literally the word Twitter as a brand name means. And so regardless of, you know, as someone, many people have pointed out, Elon Musk will still have to take down content on Twitter. Yeah. It's not suddenly going to be Pornhub. But I think culturally, it would be really, really different. I think it depends on who comes, who stays, who goes. Um, but I do, I do think there's a, a point at which it could be really, really different. And if it gets really, really different, it won't be what Twitter is, um, currently. So might be the point, which might

be the point entirely. Uh, you know, so for for example if he wanted to go full gab you know go do the full gab gab for those who don't know is a quote-unquote competitive social media platform with twitter where i think the rule is essentially anything goes just anything goes and there's a reason why it has it's it's very tiny because as you quickly learn on the internet, if, if there is an anything goes ethos, things get really bad, really fast. And so in anything goes ethos is inconsistent with Twitter flourishing as a commercial enterprise. So there's going to have to be some degree of

moderation. And how that moderation occurs and what the emphasis is in that environment could lead people to make different choices in how they allocate their social media time. And look, Twitter takes on outsized importance to us in large part because that's where all of our peers are in journalism. It's where all of your Senate staffers are. It's where all of your booking producers are. It's where everybody in your profession and everyone you cover in this profession, that's where they are. There's nothing written in stone that that has to be the case because otherwise Twitter's a pretty small social media platform compared to the rest of the social media universe. In fact, it's really small compared to the rest of the social media

universe. So there's nothing that says that this thing has to continue to be meaningful or important. And I think Musk's sort of one of the reasons why he's doing this is he, he sees Twitter as becoming decreasingly relevant outside of this little narrow channel and thinks he could revitalize it perhaps. And he might be right. Who knows? I have no idea. Um, but perhaps I'm more kind of, I don't know what the

right word is. Bemused? I don't know. I think that's fair. Yeah. I don't see it as a huge deal culturally. I do see it as a bigger deal in our subculture, if that makes sense. Yeah, we'll see where it goes. I think this is just Elon, what else is a billionaire, not just a billionaire, like a gajillion multi-billionaire supposed to do with his time? He's bored. And I think in the end, this will result in him selling his Twitter shares. Interesting. Okay. So that brings us to the law. Now, malpractice alert, malpractice alert. We're just going to do a high level look at this. So commenters who do securities law, who are poised at your keyboards right now to absolutely

eviscerate the analysis that follows, this is super basic. It's just going to hit the high points. And I look forward to reading the comments of people who will actually, with real expertise, dive into this. But just a couple of things. One, does the fact that Musk offered a price higher, a premium price higher than the current stock price, mean that a director in his fiduciary duty has to accept the offer?

The answer to that is a no. They don't have to accept the offer. Does that mean that a director has absolute freedom to reject an offer? No, they don't have absolute freedom to reject an offer. What they have to do is exercise their, quote, business judgment. Twitter's a Delaware corporation. There's something called the business judgment rule in Delaware that creates a presumption that a decision is made by directors

who are disinterested in independent acted in subjective good faith and employed a reasonable decision-making process. So given this business judgment presumption, directors' decisions are reviewed not for reasonableness, but for rationality. In other words, is this a rational decision? And so there's a whole subset of law of your duties when there is a takeover attempt. set a law of your duties when there is a takeover attempt. So for example, the board won't lose its business judgment rule protection for lack of due care unless the board's conduct amounts to gross negligence. There's a duty of loyalty, but the duty of loyalty is not, you know, the basic way of putting this is that there's a high degree of deference paid to members of the board when evaluating a takeover attempt. And under that standard, and Sarah, I think that's why you say, I don't know that they're going to take up Musk on his offer, and they don't have to take him up on his offer. Yes. And the one

thing about this that I think is interesting is that you can tell he's trying to sway the jury, so to speak, by saying, look how much the stock has gone up since I've become an investor. And then there was that threat that says I might reconsider my position. So what he's doing is he's appealing to this fiduciary duty that says, your stock price goes up when I'm involved and watch it go down when I leave. For sure. And that should influence your business judgment as you are evaluating my offer. So that's a super high level look at this, a super high level look at this. But your bet, Sarah, is Elon Musk does not

own in six months. Is Elon Musk owning Twitter or does he have a binding agreement that he will soon take control of Twitter? In six months, Elon Musk is out of Twitter. This is the equivalent of a COVID hobby that will be fun until it is no longer new and interesting and the toy stops fighting back. Interesting. Okay. Moving on to some other law, David, I have a little pet peeve that I actually did not raise with you before we started. So I'm going to tell you about the announcement and just get your reaction. Okay.

So today, legislation was signed into law by President Biden. It is a bill that will put in the U.S. Capitol two statues, one for Sandra Day O'Connor and one for Ruth Bader Ginsburg, our first two female justices on the Supreme Court. Does that strike you as odd, David? A bill to put up statues of Sandra Day O'Connor and Ruth Bader Ginsburg. Does it strike me as odd? I'm not, this isn't a trick question. I think it's great that we're going to have statues of Sandra Day O'Connor and Ruth Bader Ginsburg. I'm for it as a by and large point. But saying that you're putting up the statues of them

because they're the first two female Supreme Court justices, hmm, when have we ever honored the first two something that came 10 years apart? And I will note, yes, I went ahead and looked this up, that a bill passed the house though it has not been signed into law to put up a a statue of Thurgood Marshall the first black Supreme Court justice there was no discussion of putting up statues of the first two black Supreme Court justices and perhaps we can look into why,

what might be different between Sandra Day O'Connor and Ruth Bader Ginsburg and Thurgood Marshall and Clarence Thomas in terms of the order of their appearance. Yeah. And just to be very clear, I extra want the Thurgood Marshall statue

because right now there is a bust of Roger Taney in the Capitol. And this is to replace the bust of Roger Taney. For those not familiar with the name, Roger Taney was a chief justice of the Supreme Court. That's why there's a bust of him, to be clear. It is not because he wrote the Dred Scott decision. But nevertheless, he did write the Dred Scott decision. So perhaps having a bust of him is not appropriate, regardless of the fact that he was a Supreme Court justice and replacing him with Thurgood Marshall, who should have a bust no matter what. Because he's one cool cat. I'm all for it. But again, it's like if you have a liberal first, then we honor the first.

But if you have a conservative first, then we honor the first until we get to a liberal. Yeah, that is odd. And it just made me think, who came after Jackie Robinson? That's a really good trivia question. I wonder if anyone, here's a challenge to listeners. Without Googling it, does anyone know honor system in the comment section? Honor system. But yeah, that's a really good point. So you have Sandra Day O'Connor, Ruth Bader Ginsburg, and then just their good Marshall. good Marshall. Hmm. I say, I don't love it. That being said, again, I think there are reasons to honor Ruth Bader Ginsburg totally aside from her being the second female justice on the Supreme

Court. But for some reason, this bothered me. Sandra Day O'Connor wasn't really first. She was first asterisk. And that's why she needs to be lumped with Ruth Bader Ginsburg. No. Sandra Day O'Connor wasn't really first. She was first asterisk. And that's why she needs to be lumped with Ruth Bader Ginsburg. No, Sandra Day O'Connor was the first female justice on the Supreme Court. Full stop. Second, Ruth Bader Ginsburg was an important justice on the Supreme Court. We can honor her too, but not because she fills out Sandra Day O'Connor being the first. That is insulting and upsetting to me, David. Yeah. No, I agree with you. I agree with you. It would be like saying we can't honor Thurgood Marshall as the first Black justice without including Clarence Thomas. Well, that makes no sense. Thurgood Marshall was not added to. His legacy was not amended by Clarence Thomas.

Separately important people. Yeah. No, I agree with you. That is very odd and transparently partisan. Yes. Yeah. Just transparently partisan. My goodness.

So the Sixth Circuit, David, this is an ongoing conversation and it will be ongoing for time yet. And I want to take us to an opinion. The majority is by Chief Judge of the Sixth Circuit, Sutton, well-known judge, was on Supreme Court shortlist for a long time, avid tennis player. So if you're looking to clerk for Judge Sutton, I hear that tennis, at least it used to be, quite important. One of the clerks needed to be his doubles partner. So one clerk each year had to be good at tennis back in my day, I remember. Not being a particularly good tennis player, I did not apply. Okay. What the case is about is not going to be that important, but I'm just going to read you the opening paragraph so you can get some flavor. Last fall, the Secretary of Homeland Security issued a memorandum to his deputies outlining the department's immigration enforcement priorities and policies. Arizona, Montana, and Ohio filed this lawsuit in the Southern District of Ohio to enjoin its

implementation. The district court issued a, it's in quotes, nationwide preliminary injunction, in quote, applicable to all 50 states, blocking the department from relying on the priorities and policies in the memorandum in making certain arrest, detention, and removal decisions. The national government asks for a stay pending appeal. For the reasons that follow, we grant the stay. Okay. And they just go through, in the majority opinion, why they're granting the stay for all the relatively boring law reasons, David, that we don't need to get into. But you get to page 18, need to get into. But you get to page 18, boop, boop, boop, Chief Judge Sutton concurring with Chief Judge Sutton. I love concurrences by the same person writing the opinion. It happens

not totally infrequently. Remember there was the Judge Van Dyke concurring with Judge Van Dyke in that second circuit case. Sorry, the Ninth Circuit case about the Second Amendment. Okay. So Sutton has a relatively short here concurrence, but basically saying, please, hello, somebody stop these nationwide injunctions. So let me just read a few parts of it. What we have said so far as I see it should be taken with a grain of adjudicative salt. Imperatives of speed and decision-making less than a week since the last brief was filed do not always translate into accuracy and decision-making. Wow. The district court's remedy, universally enjoining the national government from enforcing the guidance in any state in the country, also likely exceeded its authority.

I do not take issue with the court's decision to extend the remedy beyond the Southern District of Ohio as to the three states, but nationwide to non-parties, he says? What the what? I meet this concept with considerable skepticism. Article 3 grants the judicial power, which extends only to specified cases and controversies, standing limitations, a prohibition on advisory opinions, distinctions between judgments and opinions. Wait, wait, wait, wait. A prohibition on advisory opinions?

I know. Can you believe he said that? It's horrible. Doesn't even, whoa, what? Deeply upsetting. I feel attacked. Distinctions between judgments and opinions all grow out of this language and the history behind it. The same is true of remedies, which emerge from a federal court's equitable power. Call them what you will, nationwide injunctions or universal remedies, they seem to take the judicial power beyond its traditionally understood uses.

Such injunctions create practical problems. They prevent the national government from enforcing a rule or executive order without having to prevail in all 94 districts and all 12 regional courts of appeals. They incentivize foreign shopping. They short circuit the decision-making benefits of having different courts weigh in on vexing questions of law and allowing the best ideas to percolate to the top. They lead to rushes to judgment. And all of this loads more and more carriage on the emergency dockets of the federal courts, a necessary feature of any hierarchical court system, but one designed for occasional, not incessant, demands for relief. At a minimum, a district court should think twice and perhaps twice again before granting these universal injunctions. So David, before I get

to the second part where he gets into, I think, the best arguments against this point, I think that paragraph lays out pretty well the problem with nationwide injunctions. The number one one being to me, the forum shopping aspect of it. And it's worse than forum shopping because that implies that you take your bite at the apple and then you sort of assume what that judge will do. Or you file in a district where it's a little bit of a roll of the dice of which judge you get, but there's fewer judges or something like that. It is worse than that because what we saw, particularly during the Trump administration when I was at the Department of Justice. Maybe I just saw this more, but there would be the same case filed in six districts around the country. They would lose in five of them, but all you have to do is win in one. And interestingly,

that's actually largely what's happened in that intervener case that the Supreme Court's hearing this term in the Arizona versus San Francisco immigration case, where San Francisco lost in, not lost, they won but didn't get nationwide injunctions in a lot of these, or they lost, but in Illinois, they got a nationwide injunction. And so the Biden administration then dismisses all the other cases and just keeps that nationwide injunction. And it doesn't matter that they filed, I think in that case, it was four cases and they got the nationwide injunction in one of them. That to me is the problem. It's not just that you don't have to prevail in 94 districts, you can lose in 93.

Yeah, you can go one in, it's the only league in which one in 93 still wins you the championship. That's right. And so this is the problem that, particularly for some reason, conservatives like to point out. Conservatives seem more up in arms about the nationwide injunction aspect, and then liberals seem more up in arms about the nationwide injunction aspect, and then liberals seem more up in arms about the emergency docket, what's called the shadow docket aspect. The two are inextricably linked to me, David. The one feeds the other. And the problem to me of why the partisans split on who's mad about which is who thinks they have the political power at what level. So conservatives think that there are enough nationwide injunction happy liberal judges that the liberal side can forum shop in. And so they want to get rid of

all the nationwide injunctions because they think by and large, they lose on that side. I think they're wrong about that, by the way. And then the liberals think that with a 6-3 court, by and large, they're going to lose more often at the Supreme Court's emergency docket stage. Therefore, they'd like to get rid of the emergency docket at the Supreme Court, except in death penalty cases or cases that they think are so egregious and by so egregious, the ones that they agree with, like we saw with the vaccine mandate in the Navy SEAL case where nobody seemed to complain about the emergency docket. Then, David, this is, to me, there are good legal arguments on both sides of the nationwide injunction argument. We'll get to the good arguments for the nationwide injunctions in

the second part of Sutton's opinion. And there are, I think, excellent arguments that the and there are, I think, excellent arguments that the likelihood of success on the merits, the standards by which the Supreme Court, but also the appellate courts, look at these emergency review cases could be fleshed out more. We could have rules that make a little more sense that everyone can follow, but do you agree with me that this is, at this point, turned into a power fight? Oh, absolutely. And I would say it's always been a fight over, at least at the political level, not sort of at the theoretical conceptual level. It's always been a fight based on what is my political advantage in the moment. Because it's not as if as soon as the Trump administration left office that all of a sudden conservative litigants did not seek nationwide injunctions.

Quite to the contrary. Quite to the contrary. But now they would argue that you don't unilaterally disarm. Of course, of course. So what we're talking about here is a practice that both parties utilize on a tactical basis for political slash legal advantage. As litigants do, you use the tools in your toolbox. That's what lawyers do. Absolutely. many ways you'd be a bad lawyer if your client says, I would like a nationwide injunction here. And you say, well, you know, it's a sort of a matter of legal principle. I object to nationwide injunctions. But what's odd to me, David, is that the idea that liberals benefit more from nationwide injunctions to conservatives is just incorrect in my view. A, I think there are just

as many forums in which to shop for conservatives as has been proven during the Biden administration. So it's not that it's easier for liberals, I don't think. The Fifth Circuit is as much analogous to the Ninth Circuit in that regard. And I don't mean the appellate level, although perhaps they do, but within the district courts. But also, most of the nationwide injunctions have to do with administrative action. Who is more likely to disagree with an administrative agency action? Even during a Republican administration, it's still the administrative state. So I just think overall, conservatives are incorrect, sort of like how Republicans are incorrect about who benefits, that they think Democrats wildly benefit more when more people vote, so they need to make it

harder to vote, not as a matter of race or preventing minorities from voting, but just more people voting because our voters are smart. And so they can jump through hoops and your voters are stupid. There's just like no data to back that up. And Utah proves it. Well, and I also think that some of the nationwide injunction argument has been colored or a lot of it has been colored by a single historical moment. Because the nationwide injunction was not invented during the Trump administration. Quite. No, it was not.

It was not invented during the Trump administration. But if you rewind the clock, 278 major controversies ago, one of the biggest things to start the Trump administration was the so-called Muslim ban order. And we forget the spontaneous demonstrations that erupted at airports, for example. Um, the, the ignore, I can't remember the ACLU took in more money in one day than it had ever taken in its entire history. And there was a sprint to courthouses to block the Trump administration's immigration order. And it was the news. I mean,

this was the news. So if you were a Republican, chances are your total introduction to nationwide injunctions was the Muslim ban litigation. And if you were a Democrat, chances were that was your total introduction to the issue because yeah, people like us were talking about nationwide injunctions in 2014, but was anybody else in America? No, it was like the nerds, nerds, nerds kind of conversation. And then it became a moment. And it became a moment in a particular partisan way at a particular partisan time. And I think it kind of locked in the narrative. So on the are written into the Administrative Procedures Act. So set aside some of these cases, although again, as I said, the majority of the cases are brought about administrative action from an executive branch. And so they do fall under the APA to

varying extents. And the APA has language in it that a court may hold unlawful and set aside agency action that violates the law. So what else does set aside mean other than a nationwide injunction? Judge Sutton has an answer to that. He says, that raises a question. It does not answer it. The question is whether Congress meant to upset the bedrock practice of case-by-case judgments with respect to the parties in each case or create a new and far-reaching power through this unremarkable language. We presume that statutes conform to long-standing remedial principles. And he cites several law review articles about this. And look, the argument

on that side is that basically under common law, there wouldn't have been a nationwide injunction as a remedy. And so it's like the major questions doctrine, David, this idea that Congress wouldn't have set aside this common law remedy without being more specific, not just saying set aside. They would have said set aside regardless of current common law remedies that courts find appropriate. But the pushback to that, David, is wait a second, why are we talking about common law Blackstonian remedies from back in the day when we're talking about the Administrative Procedures Act, something that is dealing with the administrative state that never existed under common law. The whole thing is setting aside common law. The executive branch

didn't have administrative agencies under the king that had to go through notice and comment rulemaking. So if the entire act sets aside previous understandings of balances and all sorts of other things. Why not remedies, too? Now, again, Judge Sutton only writes a two-page concurrence here. He is not trying to be fulsome in his response to all these arguments. But I think he is trying to poke Justice Gorsuch, kick him under the table and say, remember, you were into this question once. Can you please get back to it? Can we do this now? patchwork immigration enforcement system instead of a comprehensive and unified one. But that justification lacks a limiting principle and would make nationwide injunctions the rule rather than the exception with respect to all actions of federal agencies. This is especially troubling in the domain of immigration law where the federal legislative and executive branches, not the judicial branches, are the key drivers of national policy. Sure. Look, I am very sympathetic to the idea

that most, maybe even the vast majority of nationwide injunctions should be more serious about considering whether they should simply give a remedy to the parties in question. But David, there are plenty of examples where that makes no sense. And especially outside of the APA, where you're not suing the administration, it's not states bringing the lawsuit, for instance. I am, look, I'm very sympathetic to the idea that 15 states bring a lawsuit against the administration. The other 35

states didn't want no part of this. And so forcing them basically into your lawsuit is a little ridiculous. They have the power to join or not join the lawsuit. They're a state. But there's plenty of examples where the fight is not against a state, but against an individual. So then every individual, if you're only doing the remedy for the plaintiff. Now, Judge Sutton's answer to that is that's what class actions are for. Okay, but we also made it really hard to join class action lawsuits because we didn't like where that was headed. Well, you know, part of this is inherent, the problems that are being highlighted in these paragraphs.

And you talk about if you want a good two-page primer on this issue, this is a great two-page primer. I mean, it's going to put you on the power curve of nationwide injunction cocktail party talk just reading these two pages. But part of it is really, to me, highlights the problems with the administrative state itself. In other words, you've got an executive agency making extraordinarily consequential decisions, empowered by extraordinarily broad statutes. And then it places the judicial system in the position of, well, okay, this isn't an act of Congress. This is an act of an administration. And in this case, it was sort of a set of policy directives. It wasn't even notice and comment rulemaking. And so you have inherent in this a you have an inherent here sweeping rulings issued by the executive branch of nationwide scope without Congress acting. react to according to our separation of powers and the power of judicial review.

And there's no great way through this, to be honest. There are downsides on both ends. I did a panel over the weekend at CU Boulder, which by the way, Boulder, Colorado is gorgeous. It's why people live there. is gorgeous. It's incredible. Yeah. Yeah. I hiked up the Flatirons on Sunday. Oh man, so nice. Anyway. And the question was, does the president have too much power? And everyone basically said, even the people to the left of me, the panelist on the left to my left, um, said, yeah, president has too much power. But where we disagreed was, would, would anyone support rolling back the power of administrative agencies? And the answer, and I was the only one saying, roll it back, roll them back. And, and I was definitely the only one saying, and the court should do it. The court should do it. I said the word non-delegation doctrine,

and I felt like there was an actual physical reaction to that amongst the tiny few people in the audience who knew what non-delegation doctrine, this, this kind of problem is an inherent in the growth of the administration, the administrative state and the, and the, uh, retreat of Congress. I don't see a way through this. That's neat, clean, easy. And that doesn't lead, leave us with substantial downside risk one way or the other. Yeah. And the principle, if you say that you don't have nationwide injunctions, would have to be that you only grant injunctions to the parties before you. That also has a problem. Judge Sutton points out there's no limiting principle to the idea of the patchwork of immigration laws that would then be around the country. But the reverse is also

true. So go back pre-Shelby County, just as one example, to the preclearance idea. So a couple voters or an individual, you know, a single group sues a state about their voting laws. Well, is the only remedy that those people don't have to show voter ID or something? Well, no, you'd have a statewide injunction. But under this nationwide injunction principle, I don't see how then a statewide injunction would work. And preclearance, to my point, sorry, I got on a little tangent there, gets even weirder if you had something like preclearance. Um, how would that, how would statutory constructions like that even function in a non-nationwide, uh, non-remedy wide injunction world? Anyway, it, it gets really, really weird. Lots of law review articles on this and a lot more coming on the shadow docket. Um, and so this is going to continue to be an issue. This is really a two pager from Sutton needling the court.

Do something, say something. Yeah. And I wish you could needle Congress and get them to do something. So for example, you could say that if you're going to challenge an, an, uh, an active and administrative agency, it has to be done in a specific court, no form shopping, no form shopping. You're going into federal district court in Washington, D.C. That's it. That's the one. And if it doesn't grant you a nationwide injunction, you don't get your

nationwide injunction. You don't get to go anywhere else. I mean, just that one simple statement that here is the court with jurisdiction, here is the extent of its jurisdiction, would go a long way towards dealing with an issue that has federal courts from coast to coast kind of flailing around trying to figure out what to do. But asking Congress to do something is just a bit much there. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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Terms and conditions apply. Some book banning, David? Briefly, briefly. Okay, so PEN America came out with a report last week. Ken America came out with a report last week, and I wrote a little bit about it in a piece that I wrote for The Atlantic that we'll put into the show notes. And it essentially traces for a specific period of time from July 1, 2021 to March 31, 2022. It created an index of book bans. Now here's the top line. Here's sort of the top line conclusion. For the nine-month period represented, the index listed 1,586 instances of individual

books being banned, affecting 1,145 unique book titles. This encompasses different types of bans, including removal of books from school libraries, prohibitions in classrooms, or both, as well as books banned from circulation during investigations resulting from challenges from parents, educators, administrators, board members, or responses to laws passed by legislatures. So it's 1,145 titles by 874 different authors, 1,145 titles by 874 different authors, et cetera. And it's 86 school districts in 26 states and representing a total enrollment of 2 million students. So, Sarah, you looked at some of the books on the list

and you looked at the report overall. You looked at the most commonly banned book um and you have a few thoughts so first i appreciated that this report um laid out a lot of their definitions well so a book ban is not when the school never purchases the book in the first place and a book ban is not when they just you know start moving out old books to make room for new books things like that. It has to be a book that an official at the school thought should be in the library or in a classroom and then was overridden by another official or the school board. So I think that

definition is important here because otherwise you would end up with some weird stuff. That being said, a report based on percentages is always going to be over and under inclusive of what you're really trying to get at. So for instance, they say 25% of the books were banned for sexual content. Okay. It seems to me like banning a book for actual sexual content is probably a decent reason to ban a book in a school. And then it says, and I might get this, I think it was 46% have a primary character or secondary character who's a person of color. That is largely irrelevant to whether the book should or should not have been banned. is largely irrelevant to whether the book should or should not have been banned. I understand the point they're trying to make, which is this is disproportionately affecting books about people

of color. But David, this is why the percentages to me aren't helpful. My impression is that the people writing children's books have changed pretty dramatically over the last 50 years, let's say. And so if there's a lot more children's books than there were, I mean, young adult fiction has exploded in the last 20 years as people realized it was super duper profitable. So if you have a lot more books, just numbers wise, tons and tons more books, then by definition, you're going to have more books than probably that have sexually explicit stuff or stuff that's weird, like far right or far left wing books, because there's just more overall. And so that's why the percentages to me aren't particularly interesting.

So then I went to, of course, the most banned book in America. It's called Gender Queer, a memoir. And this is the description of the book by the author. A journey of self-identity, which includes the mortification and confusion of adolescent crushes, grappling with how to come out to family and society, bonding with friends over erotic gay fan fiction, and facing the trauma and fundamental violation of pap smears. That's an interesting, I did not see the last part coming. Yep, that one was odd to me, and I was not able to find that part of the book to read it. But again, that's a medical test that women need to undergo to screen for a number of things, but mostly cervical cancer. And while I will tell you that is not one of the more pleasant medical tests you will undergo, David, it's not much compared to, for instance, a colonoscopy,

which I have had done and which requires some type of anesthesia, basically. You need to go into Twilight to do something like that. So look, some medical tests are more pleasant than others. Mammograms are incredibly, incredibly painful for some women. And we don't say that that's trauma. Okay. This author is non-binary and queer. So David, some of this book, I have to tell you, would be great for your kid who is just maybe having a hard time with who they are and dating and all the stuff that comes with junior high and high school problems. But, and I don't think the author needed to include this, it follows the author into adulthood as well. And there are simply things included in the book. Now, remember, this is a graphic novel, so there are drawings.

There are drawings in the book that are inappropriate to include in a school, not a public library, probably. I don't have a particular problem with this being in a public library or even students being able to get to a public library to find it. But for instance, in the most famous illustration, it shows two people engaged in oral sex, very graphically. You know, some of the discussions in the adulthood section are very sexually explicit.

So yeah, banning that book, quote unquote, I guess I'm confused why a librarian, a school librarian, would think that that would be appropriate to have drawings of oral sex in the school library. And David, you know, we talked about this a little in the green room. You and I were big fans of our public libraries, went to the public library a lot. In fact, I never went to my school library because the public library had more options. I won a little trophy in fourth grade for how much I went to my public library. in fourth grade for how much I went to my public library. And when I turned 16, I got my driver's license, got behind the wheel of a quite old Ford Explorer, went to the grocery store and picked up raspberry and margarita jelly bellies. That was my first thing I needed to do. But one of the next things I did was I went to the public library in downtown Houston and just marveled at the freedom of being able to sit in a library and being able to read anything I wanted, whatever I wanted, because I could drive there. Uh, David, what were your thoughts on the school part of book banning, how that interacts with children, minors' ability to get books that

would be at their public library, et cetera? Yeah. So my view on this is really pretty simple. I do think that there are librarians who, and I wonder how the process goes. I don't think that necessarily librarians are going book by book through each one of these. They're probably buying books in a package. They're buying books in a suite of books that are presented to them by vendors. And I think some of the content in some of these books is not appropriate. As you laid out, some of the books that are banned in some places, you can't believe that they're being banned, right? Yep.

So some of them, I hesitate to judge a book banning movement by the worst book or by the best book, right? That's right. And so my general view on it is that if a book is in a library and it has explicit content, if a book is in a library and it has explicit content, that the way to deal with it is that they cannot be checked out without parental permission or can't be viewed without parental permission. And there are actually procedures in place to do that. And I'm totally fine with that. The concern I have with the movement is not the book genderqueer. The concern I have with the movement is not the book Gender Queer. The concern I have with the movement is as with all movements towards censorship, and we saw it with the speech code movement in the late 1980s and early 1990s, is that a movement like that always sweeps up some speech that everybody says is awful.

that always sweeps up some speech that everybody says is awful. Okay. So you're going to have some guy who's engaged in harassment on a college campus and you say, see, our speech code prevented that. And then you're going to have two people who got into an argument over affirmative action and somehow the speech code gets involved there too. And then you say, well, wait a minute, this is too much. But David, this is different. This is a school having books at the school. You don't need to have all the books at the school. No, no, no. I know. But so here's the deal. Here's what ends up happening is people start to measure offensiveness by the fact that somebody's offended. Okay, so that becomes the measure of whether or not a title is included. Okay, so I'll give you a great example that just happened here recently. online book library and that was an app that Williamson County students I'm in Williamson

County Tennessee that Williamson County students had access to a particular app and it had thousands and thousands of titles on it and what happened is a teacher complained I mean a one apparently one Apparently one parent complained about one of the titles. And so the school district, not knowing how really what to do about one title out of 40,000 titles, basically just blocked the whole app while they did the review. And so this is the review. And so this is, this is the thing. It's very difficult to judge a censorious movement by the most justifiable, um, the most justifiable worst book. My question is always, what is the standard? What is the standard? I agree. So let me bring in two law points. One,

Board of Education, Island Trees Union Free School District versus PICO, the most adorable name for any Supreme Court case, 1982, quote, local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. David, you know what I think about that opinion? You don't think it's any good. I don't think it's any good. I don't think it's good law. And so this study repeatedly tries to cite PICO and tries to apply PICO to these various school districts. And the whole time I'm like, PICO is not good law. This is going to have to go up to the Supreme Court again, because that's

a fairly nonsensical statement and a statement that is not possible to apply with any rigor to what is going on these days. However, David, what I do think that Penn, the group that put out this report, did really well is suggest the process by which to do this. Because obviously there are books that are not appropriate to have in school libraries. And then there are books that parents are banning because they don't like the color blue. Like, well, okay, that's not going to work either. So the question is not who gets to, or rather how we come up with the list of books, what books should be included. The question is, what's the process by which we remove books?

And I really liked Penn's suggestion for creating that process and school districts having to show transparency, both in not just, again, which books they're removing, but what is the process? Like a formal complaint, and then we review it, then we take a vote. Here's how the investigation works. And here are the books that we are currently investigating versus the books that we've, you know, like, do a process school board, do a process school, because school libraries are not public libraries. I have no problem with having pretty limited books in the school library, frankly, because that's not what a school library is for, in my opinion. A school library is pretty narrow in terms of its purpose on the campus, as opposed to a public library, which is very, very broad in purpose. So if I were queen of my

school board, I would have a process. It would be very transparent. And the result of that process would frankly be a limited number of books, a lot of which would be nonfiction, I'm going to be honest. I was interested to see nonfiction books banned from some of these schools, like a double digit percentage of all the books banned were nonfiction. You're going to have trouble justifying that to me, but I'm willing to look. But again, the main legal point here is that this 1982 Supreme Court case, PICO, it looks a lot like the case that we talked about around free speech, the mall case. Pruneyard.

Where it's just not good law anymore, or we're about to find out if it's good law. And that will come up in the social media bill context. And remember that Supreme Court case, Pruneyard, was about the Supreme Court holding that a mall did have to let teenagers get their petition, basically a BDS petition signed against Israel in the mall, that they had to let them in to do that. I don't think that's good law either. It just doesn't, there's not a whole lot of discussion of how this will get applied super broadly if you always have to let teenagers get their petition signed in your mall.

Same with PICO. Yeah, and I just go back. I'm gonna make the same argument that I've made about free speech for, gosh, Sarah, 30 years. Subjective standards result in overbroad regulations and censorship. And so this is if you if I went into multiple jurisdictions and across the country dealing with speech codes, both at the university and the secondary school level, by the way, but these were regulating student speech, and said, look,

you just cannot regulate expression based on subjective listener response. So the quick way to explain the problem with that is you have no standard. So Sarah, you, you're tough. You and I can go toe to toe on ideas. We can absolutely go toe to toe on ideas. It doesn't bother you. You're fine with it. You love it. Poor legendary producer, Caleb. He's an eggshell plaintiff. He's an eggshell. If I'm a college student and I've just left the coffee house or the student center or wherever where Sarah and I were engaged

in like hand-to-hand intellectual combat and I'm energized by being in college and I see Caleb and he says something I don't like and I respond to him exactly the way I respond to you, but his feelings are hurt. Because his feelings are hurt, I violate the speech code. And that subject, and so there's no standard. If the standard is your feelings, well, then what do I end up doing? I end up backing way off because the first person I offend, the fact of their offense is proof of my crime. And what we tend to see happen

in a lot of these disputes, both where the First Amendment is clearly involved, such as a student speech issue, or where it's a lot hazier, like the library issue, the easiest thing in the world for a public body to do is to default to the lowest common denominator of offense. If somebody's offended, I'm just going to back away like this, the elimination of, at least for a while. And so this is a constant temptation for public bodies is to default to the squeakiest wheel. And that is the worst way to respond to an issue in a free speech context. Yeah. So again, I remember, I think we talked about this briefly a while ago, but I read She's Come Undone in high school. Unquestionably a sexually explicit book, heterosexually explicit, homosexually explicit. It was not a book that I got at the school library by memory. Yeah, a girlfriend gave it to me to read when I was 15. That is not a book that needs

to be included as a curricular book in the school library. But also it's fine and sometimes good if a 15-year-old reads a book that's not included in their school library. And that's where parenting comes in. And you know your kid. My parents were pretty lax. They have no idea what was in She's Come Undone, even though they probably saw me reading this book with like a baby blue cover and clouds floating by. Oh, that looks nice. She's reading a really thick book. Yay.

But if your kid needs more supervision, provide that supervision. We just shouldn't be relying on schools to do everything. And in this case, that means to me, including every book that some kids will need to read, even though other kids it's not appropriate for. So Sarah, let's wind down, but I understand that we have a special guest to join us as we end this podcast. Yes. I mean, I think that when we think about other legal, we used to watch these TV shows, David, and then talk about them if they had something to do with the law. And so I think your assignment at this point is to watch the dropout so that you and I can talk about the legal implications of that show and whether we sort of agree that her punishment was just how it came about and whether our laws are sufficient to deal with things like this.

I'm sorry, her punishment or your punishment? Sorry, my punishment? No, I don't know. I don't know anymore. Yeah, I think you need to watch the dropout. But also, David, we had a lot of positive response to legal philosophy conversations, many people coming up with the same idea, which was that perhaps it's a monthly feature of the podcast. And I think that's a good idea. So we've heard you and we will have a guest on to talk legal philosophy. Let's call it once a month. Seems like a good idea. Yeah, absolutely. I love that idea. And I love the idea of bringing on a progressive legal philosopher to really articulate what progressive

legal philosophy is. Because it's funny, you and I are both so steeped in originalism that some of our more progressive listeners, I do think that if this is their exclusive legal podcast, we're absolutely infecting them with our originalism. But in fairness, David, so when I put them into three buckets, right? I said there's this new right, common good constitutionalism. Yep.

Originalism and textualism. And then the living constitution, liberal constitutional interpretation. And some people were like, but wait, lots of liberals subscribe to originalism and textualism, but liberally. And I was like, yeah, yeah, totally, Elena Kagan. But that doesn't make it not originalism or textualism just because liberals also subscribe to it. bucket is not only conservative. That is by far now the majority bucket. It's like 50% in originalism and textualism, maybe far more than that at this point. And then a few on that common good constitutionalism and a few at this point left on the living constitutionalism. So I think we have to do a little bit of everything, David. We'll find a Kagan-esque liberal originalist, and we'll try to find a living constitutionalist as well.

exposure to some of the other judicial philosophies. So we're going to be doing that. It's going to be fun. And so that was a great suggestion. I don't know who suggested the once a month. Several. Yeah. Several people. Several. That's a great suggestion. So we're going to start that. That'll be fun. Sounds good, David. Thank you, Elizabeth. Thank you for joining us, by the way. It's my pleasure. Thank you for joining us, by the way. It's my pleasure. I don't know.

I just think that's uncanny. But anyway, thank you for listening. We will be back next Monday. In the meantime, please go rate us wherever you listen to your podcast. Please subscribe and please check out thedispatch.